Setu Kamal v Tax Policy Associates Ltd & Anor

On an application to terminate defamation proceedings, the court must test the pleaded case against the applicable legal rules, while allowing amendment where a defect may be cured. Libel must identify the publication, words, meaning and extent of publication with sufficient precision. The rule in Charleston requires the publication to be considered as a whole. Malice must be pleaded separately and specifically, by facts capable of showing probable dishonest falsity or recklessness; it cannot be established by aggregation of individually insufficient particulars. The honest opinion defence may be determined summarily where the pleaded meaning is, on the evidence, opinion, its basis is indicated, an honest person could have held it, and there is no real prospect of proving that the defendant did not genuinely hold it. A statutory SLAPP depends on the claimant’s intention to cause harm or inconvenience beyond that ordinarily encountered in properly conducted litigation.

Mr Setu Kamal brought claims in libel and malicious falsehood against Tax Policy Associates Ltd and Mr Daniel Neidle concerning an online article about tax avoidance schemes and Mr Kamal’s professional conduct. The defendants applied for partial strike-out, summary judgment on the whole claim on the basis of honest opinion, declaration that the claim was a statutory SLAPP, and security for costs.

The court considered defects in the libel pleading, the alleged rule-breaking and professional misconduct meanings, the pleading of malice, the statutory honest opinion defence, and the new SLAPP regime under the Economic Crime and Corporate Transparency Act 2023. The central issues were whether any part of the pleaded claim disclosed a viable cause of action, whether the libel claim had a real prospect of defeating honest opinion, and whether the claimant’s conduct satisfied the statutory SLAPP test.

1. Partial strike-out. The pleading of the URL slug as an independent defamation was irreconcilable with the rule in Charleston v News Group Newspapers. The whole of paragraph 4 was struck out. The pleading that the Article falsely stated that a court had found a breach of duty was untenable because the Divisional Court had expressly found a breach of counsel’s duty to the court. Paragraph 5(b) was therefore an abuse of process and was struck out. A court has no power to order an apology in defamation proceedings; paragraph 14 and the equivalent claim-form pleading were struck out.
2. Malicious falsehood. Malice is a serious allegation akin to fraud. Each particular must, assuming its facts to be true, be capable of establishing dishonest knowledge of falsity or complete indifference to truth or falsity, and must show malice as more probable than its absence. Post-publication refusals to amend, personal animosity, mockery, imbalance or poor journalism do not suffice without more. Malice cannot be pleaded additively. The entire malicious falsehood claim was struck out as irremediably defective.
3. Summary judgment on libel. Taking the claimant’s pleaded meanings at their highest, there was no realistic prospect that they would be found to contain defamatory factual allegations rather than opinions. The Article indicated the basis of the opinions, and the defendants identified contemporaneous facts with a sufficient nexus to them. An honest person could have held even strong, unfair, unreasonable or hostile opinions. Mr Neidle’s unchallenged evidence established that he genuinely held them, and there was no real prospect of proving otherwise. Summary judgment was entered for the defendants on the whole claim.
4. SLAPP declaration. For section 195(1)(b), “information” includes opinion information, and the statutory definition is concerned with whether the information had to do with economic crime, not whether an offence had been proved. The second limb requires reason to suspect that an economic crime may have occurred and a belief that publication would facilitate an investigation. The conduct limb is subjective. Mere incompetence or defective litigation is insufficient, but the court may infer the requisite intention from conduct such as an improperly conducted urgent injunction application, inflated and unsustainable financial demands, compelled-speech demands, and attempts to obtain journalistic sources or subscriber information.
5. The claim was declared to be a statutory SLAPP. The alternative security-for-costs application was unnecessary.

First-instance decision of the High Court (King’s Bench Division). No earlier appellate decision concerning this claim was stated.